On July 29, 2021, the Internal Revenue Service (IRS) updated its Tax Credits for Paid Leave Under the American Rescue Plan Act (ARPA) of 2021 Guidance (the Guidance). As a reminder, private sector employers with fewer than 500 employees could voluntarily elect to extend ARPA benefits to their employees through Sept. 30, 2021, and in exchange, receive a federal tax credit. 

Read More >> IRS Updates American Rescue Plan Act Guidance

The following article ran in the August 2021 edition of WestView News and is reprinted here with permission. 

Effective as of July 5, 2021, New York City fast food employers may only discharge employees for just-cause. This new law effectively chips away at the American tradition of at-will employment. 

Read More >> New York City Fast-Food Employers Beware: Just-Cause Needed for Firing

The Fair Chance Act (FCA), which was added to the New York City Human Rights Law (NYCHRL) on Oct. 27, 2015, provides “fair chance” protections to workers with criminal convictions and limits when and to what extent employers can consider an individual’s criminal history in making employment decisions. On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued new guidance¹ interpreting key amendments to the FCA that go into effect on July 29, 2021. 

Read More >> NYC Amends Fair Chance Act

The following article ran as a guest opinion in the July 29, 2021 edition of the Rochester Beacon and it is reprinted here with permission. 

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Since the first COVID-19 vaccines were granted emergency use authorization by the Food and Drug Administration in December, many businesses have wrestled with whether to impose vaccine mandates for their employees. This is a difficult question, with many considerations, including whether such a requirement is necessary or practical. Perhaps the most significant consideration, with which businesses and lawyers have struggled, is whether such a requirement is “legal.”

Read More >> Department of Justice Issues Opinion on the Legality of COVID-19 Vaccination Mandates

On Friday, July 9, 2021, President Biden signed an Executive Order on “Promoting Competition in the American Economy” (the Order) aimed at limiting certain anti-competitive practices across multiple sectors, including agriculture, telecommunications, technology and pharmaceuticals. The Order highlights a multitude of anti-competitive practices in these sectors, including the increasing pervasiveness of non-competition and related agreements throughout the American economy. While the Order itself does not prohibit non-competition agreements — and is not expected to have any immediate effect on their enforceability — employers should view the Order as a possible precursor to further actions over the coming months and years.

Read More >> Executive Order has Little Immediate Impact on Employee Non-Competition and Related Restrictive Covenants

On the evening of July 6, 2021, the NYS Department of Labor (DOL) published the long awaited “Airborne Infectious Disease Exposure Prevention Standard” (Standard), a general “Model Airborne Infectious Disease Exposure Prevention Plan,” and several industry specific model prevention plans as well. These are now available on the DOL’s website. The model plans are currently available in English, but the website states that they will also be available in Spanish soon, as required by statute. 

Read More >> NY HERO Act – NYSDOL Publishes Airborne Infectious Disease Exposure Prevention Standards and Model Plans For Various Industries

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York¹, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

“How is my hair? Does it look OK?” With employees returning to onsite work, questions regarding employers’ grooming and dress code policies are bound to crop up. When responding, employers should be cognizant of the fact that their dress code and grooming policies must comply with expanding legal protections against discrimination based on race-based hairstyles. 

Read More >> How is My Hair? A Brief Review Of Hairstyle Discrimination In The Workplace

On April 14. 2021, the U.S. Department of Labor (DOL) issued much needed guidance concerning best practices for plan sponsors, fiduciaries, record-keepers, participants and beneficiaries pertaining to cybersecurity for retirements plans. The DOL’s guidance focuses on three specific topics: hiring service providers; managing cybersecurity risks; and online security tips for participants to avoid risk of fraud and loss. Although the guidance was couched as “best practices,” it is reasonable to interpret it as creating minimum cybersecurity standards and practices for retirement plans. The guidance specifies the duty of plan fiduciaries to protect plan data against cybersecurity breaches and attacks, and potentially signifies a precursor for the DOL to assess liability for damages stemming from plan data breaches in the future. Although the guidance did not address health and welfare plans, those plans may also wish to consider implementing these measures. 

Read More >> DOL Issues New Cybersecurity Guidance for Plan Sponsors, Plan Fiduciaries, Record-Keepers and Plan Participants

As previously reported, the New York Health and Essential Rights Act (HERO Act) was signed into law by Gov. Andrew Cuomo on May 5, 2021. The governor announced that his approval was based on his having secured an “agreement” with the NYS Legislature to make certain “technical changes” to the bill. On May 26 the amendments passed in the NYS Senate, and on June 7, they passed in the NYS Assembly. On Friday, June 11, the bill was delivered to and signed by Governor Cuomo. 

Read More >> Technical Amendments to NY HERO Act Passed – What’s Next For Employers

At long last, the Occupational Safety and Health Administration (OSHA) has finally released a COVID-19 standard that it has stated was coming since January. Healthcare employers will be required to abide by the new emergency temporary standard (ETS) published by OSHA (the last time OSHA issued an emergency standard was in 1983 to address asbestos exposure). The emergency workplace safety rule was published on OSHA’s website on June 10, 2021 and is effective immediately upon publication in the Federal Register. Voluntary guidance for other industries will follow.

Read More >> OSHA Releases COVID-19 Workplace Safety Rule for Health Care Employers

Our previous information memo discussed several issues that employers should be aware of when considering whether to provide an incentive to employees to encourage them to receive the COVID-19 vaccine. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance to employers on workplace COVID-19 vaccination policies, including guidance on employer-offered COVID-19 vaccine incentives.

Read More >> EEOC Issues Updated Guidance Regarding COVID-19 Vaccination Incentives